Monday

Jun 23, 2014 at 2:57 PM

Posted By Walter Bird Jr.

A judge has upheld a previous court decision denying an injunction against all but one part of the city's two panhandling ordinances.

In a letter to City Manager Ed Augustus Jr., City Solicitor David Moore informs him the US First Circuit Court of Appeals upheld an earlier district court decision refusing to slap the city with an injunction and keep it from enforcing two controversial panhandling ordinances.

"The court agreed that the ordinances regulate behavior, not speech," Moore writes, "and are motivated by public legitimate and substantial safety concerns, not invidious discrimination."

The decision was handed down Thursday, June 19 in a written opinion from retired US Supreme Court Justice David Souter, and followed a ruling last October from US District Court Judge Timothy Hillman denying a request for an injunction prohibiting enforcement of the ordinances. The Court does not, however, strike down the injunction against soliciting after dark.

The original suit was filed by Robert Thayer and Sharon Brownson, described in the lawsuit as homeless individuals, and Tracy Novick, who is a member of the School Committee. Among other things, the suit contended the ordinances infringed upon free speech.

Novick declined to immediately comment on the decision, saying she had not yet read its language.

The suit stemmed from a two ordinances the City Council passed in January 2013, one banning "aggressive panhandling" and the other focusing on pedestrian safety by prohibiting the use of traffic islands or medians for purposes other than to cross the street.

The First Circuit Court rules that the ordinances are not "based on the content of the speech."

"After examining the texts and independent evidence of intent behind the ordinances," Souter writes, "we think there is no serious question that the district court was correct in finding that the restrictions were not based on the content of the speech within the terms of First Amendment doctrine."

That, Souter continues, does not mean "certain subjects of speech and even certain messages are associated with the targeted behavior. Panhandling and solicitation of immediate donations convey messages of need, and waving placards at traffic islands may often be political expression. But if the mere association of certain behavior with certain subjects were to amount, in itself, to a content basis for First Amendment scrutiny, the point behind content discrimination would be lost."

The ordinances, he says, do not aim to suppress certain messages, only to regulate their delivery.

"The first of these reasons," Souter says, "is the fairness of the City's working premise that there are particular, commonly acknowledged circumstances, unrelated to the expression of particular views and messages, in which solicitation can cause serious apprehensiveness, real or apparent coercion, physical offense, or even danger to the person addressed or to all parties. We are not dealing here, in other words, with a mere attempt to suppress a message that some people find distasteful for its content.

"A person can reasonably feel intimidated or coerced by persistent solicitation after a refusal, and can reasonably feel trapped when sitting in a sidewalk café or standing in line waiting for some service or admittance. And even th stout-hearted can reasonably fear assault when requests for money are made near an ATM where cash may have been obtained and so provide temptation to snatch a wallet or purse. These are not imaginary concerns that smell of pretext."

Addressing the claim of discrimination, Souter writes, " ... this form of selectivity is not only missing here; its very absence is one of hte grounds for the appellants' claim of overbreadth. Girl Scout cookie sellers and Salvation Army bell-ringers are as much subject to the Aggressive Panhandling Ordinance as the homeless panhandler. Nor do we discount the inclusion of the charitable solicitors within the scope of the regulation as merely cosmetic overlay. While it is apparently true that those who sold cookies or held out the tambourine were free to solicit ad lib before panhandling became common, that fact shows nothing more than the need for a public practice to reach some critical dimension before it is worth the effort to regulate, coupled with the City's sense that any regulating it does do must be evenhanded."

Moore notes that the latest decision does not end the lawsuit. The plaintiffs could return to district court to present evidence supporting their claims, develop another case or withdraw their case entirely. Another option would be to petition the Supreme Court for an appeal.